www.canadianlawyermag.com 5
"You're potentially
losing your right to sue
before you even find
out that you have it."
the lower court and Licence Appeal Tribunal.
Tomec was a pedestrian when she was
hit by a car in 2008. After her surgery and
hospitalization, she used housekeeping and
attendant care benefits — which are pay-
able for 104 weeks following an accident,
unless the beneficiary sustains a "cata-
strophic impairment."
While Tomec's benefits were denied by
insurance beginning in 2010, her condition
continued to worsen, and, in 2015, a doctor
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concluded she was catastrophically impaired
as a result of the accident.
But, while Economical accepted Tomec's
status as catastrophically impaired for some
purposes, it said she was out of time to claim
the housekeeping and attendant care ben-
efits, due to the gap between 2010 and 2015.
Citing the Supreme Court of Canada case
Pioneer Corporation v. Godfrey, 2019 SCC
42, the panel of appeal court judges said that
discoverability applies if a limitation period
is "conditioned upon accrual of a cause of
action or knowledge of an injury."
"Here, the decisions below thrust the
appellant into a Kafkaesque regulatory
regime," wrote Justice C. William Hourigan,
with justices Mary Lou Benotto and J.
Michal Fairburn concurring. "A hard limi-
tation period would bar the appellant from
claiming enhanced benefits, before she was
even eligible for those benefits."
Barrie lawyer Steve Rastin, one of the
lawyers who represented intervenor Ontario
Trial Lawyers Association, says the appeal
court's decision brings timelines for acci-
dent benefits for catastrophically impaired
people in line with a more familiar legal
standard: discoverability, rather than a
hard limit. While many laws in Ontario
involve a two-year time limit, only some —
such as estate cases — have a policy reason
to enforce "hard" limits. Others start the
"clock" when a cause of action is "discov-
ered," he says.
"Generally, most people would agree that
hard limitation periods are unfair because
you're potentially losing your right to sue
before you even find out that you have it,"
says Rastin, managing partner at Rastin Law
and past president of the OTLA.
